Citation Nr: 1603161 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 06-03 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for gynecological problems. 3. Entitlement to service connection for allergies. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for joint pain. 6. Entitlement to service connection for a dental condition. 7. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to November 1991, with additional periods of active duty for training and inactive duty for training in the Army National Guard until 1999. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the appeal has since been transferred to the RO in Montgomery, Alabama. In March 2010, the Veteran testified before a Veterans Law Judge (VLJ) who has since left employment at the Board. The Veteran was provided with another opportunity to testify before a VLJ, and such testimony was taken at a November 2015 hearing. In July 2011, the Board remanded the above issues for additional development. The Board notes that the issue of entitlement to service connection for skin condition was granted following the 2011 Remand, and thus, that issue has been resolved and is no longer before the Board. The issues of entitlement to service connection for gynecological problems, a low back disability, joint pain, and dental problems, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, the Veteran's headaches were caused or aggravated by her service. 2. Resolving the benefit of the doubt in favor of the Veteran, the Veteran's allergies were caused or aggravated by her service. 3. The Veteran's service-connected psychiatric disorder has been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Headaches were caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Allergies were caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. The schedular criteria for assignment of TDIU are met. 38 U.S.C.A. §§1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection for certain chronic diseases (enumerated in 38 C.F.R. § 3.309(a)) may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither migraines nor allergies are listed in 38 C.F.R. § 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). With regard to the Veteran's claims for service connection for headaches and allergies, the Veteran contends that she has suffered from headaches and allergies beginning in service and has consistently suffered from these disabilities since service. The service treatment records confirm the Veteran's contentions, in that in November 1986, the Veteran was treated for headaches diagnosed as a migraine episode, and in December 1984 and January 1985, the Veteran was treated for allergic rhinitis/seasonal allergies. Then, on September 1992 separation examination, the Veteran stated "yes" to experiencing hay fever and sinusitis, and reported having headaches during her menstrual periods. The Veteran has also stated that she suffered from these conditions when she was stationed in Honduras, a location where she attended summer camps during her service in the Army National Guard at times between 1991 to 1999. Post-service treatment records tend to demonstrate a continuity of symptoms of headaches and allergies following service separation. Private treatment records reflect that in November 2000, the Veteran was experiencing ongoing sinus problems and was referred to an allergy physician. In March 2001, she reported a history of allergies for which she had previously received shots. These records also show that from 1996 through 2002, the Veteran was treated for repeat episodes of pharyngitis, sinusitis, and upper respiratory infections. VA treatment records beginning when the Veteran first sought treatment at the VA in 2003 reflect her consistent report of experiencing headaches for many years. They had worsened in 1991. In September 2003, she was noted to have a history of rhinosinusitis and sinus infections. In June 2004, physical examination resulted in a finding of chronic rhinosinusitis, of uncertain etiology. At that time, she reported that she had been briefly placed on immunotherapy for her allergies while in service and at that time had been told of allergies showing multiple reactivities. A review of the remainder of the post-service records shows that the Veteran has suffered from severe migraine headaches, consistently stated to date back to 1991. The Board notes that in July 2014, a VA examiner stated that he/she was unable to formulate a nexus between the Veteran's allergies and headaches to her service because the service records showed isolated treatment for those conditions and the post-service treatment records began in 2003 with regard to headaches and 2014 with regard to sinusitis. Thus, there was no indication of chronicity in service or continuity since service. However, the Board places little probative weight on the VA examiner's opinions because the examiner failed to take into consideration the Veteran's consistent, competent lay statements of onset and continuity, and also did not identify pertinent treatment records dated closer to the Veteran's separation from service. In that regard, the Veteran is competent to report experiencing symptoms of allergies, such as sneezing and a stuffy nose, as well as headaches, as such disabilities are capable of lay observation. Records dated in the late 1990s and early 2000s document treatment for these disabilities, in contrast to the VA examiner's review of the record. Accordingly, in this specific case, in light of the indication of migraine headaches and seasonal allergies in service and as reported on separation from service, competent lay testimony and medical evidence demonstrating a continuity of symptoms since service, to include active duty for training in the Army National Guard, and the current diagnoses of chronic rhinitis and migraine headaches, the Board finds that the evidence weighs in the Veteran's favor, and service connection for these disabilities is warranted. The Board does not find that the linkage between the current headaches and allergies and service is established based solely on continuity of symptoms evidence, rather it finds that the claimed disabilities were treated and diagnosed in service and thus were directly incurred in service. 38 C.F.R. § 3.303(d). Service connection is granted. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is currently in effect for dermatitis as a residual of lupus erythematosus, rated as 60 percent disabling, a depressive disorder, rated as 50 percent disabling, and a fracture of the left big toe, rated as noncompensable, with a combine rating of 80 percent. Thus, the Veteran meets the schedular criteria for consideration of entitlement to a TDIU. 38 C.F.R. § 4.16(a). The remaining question before the Board, then, is whether she is unable to secure or follow a substantially gainful occupation solely by reason of her service-connected disabilities. Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to age or the impairment caused by any disabilities that are not service-connected. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The evidence reflects that the Veteran has not sustained full-time employment since prior to the appeal period. Following her separation from service in 1991, she worked in such jobs as construction clean-up, janitorial work, and other unskilled jobs such as in a factory. Her last job ended in 1999. In June 2004, the Veteran underwent a vocational rehabilitation evaluation at the VA. At that time, she reported finishing her education in the 12th grade. She reported that she had been fired from all three of her previous jobs because she had not been able to get along with her coworkers. Mental status examination revealed that the Veteran was depressed when discussing her employments status, she did not like to be in socials settings, and rarely left her home. She was limited in her ability to obtain any job due to her training and past work history. The examiner concluded that based upon a review of the Veteran's medical records and evaluation, the nature of her emotional and physical symptoms severely limited her ability to perform the physical activities required of unskilled work. In addition, her emotional lability prevented her from getting along with co-workers. She was also affected by pain related to neck and joint pain. Her physical and psychiatric problems were chronic and resulted in an extremely poor prognosis for improvement. Thus, it was concluded that she did not meet the requirements for competitive employment at the level of skill her work history presented. On May 2008 VA psychiatric examination, mental status examination revealed sleep difficulties, the presence of mood swings and irritability, crying spells at least twice per week, a lack of energy, attention, and concentration, as well as vague paranoid ideations. She was socially isolated but for living with her son. It was found that her depression was due to her service stressor. It was further found that on an industrial level, the Veteran's combination of chronic physical problems, to include her dermatitis secondary to lupus as she had discussed during the interview, as well as her inability to get along with others, would make it unlikely that she would be able to hold any meaningful employment. The Board notes that claims for other disabilities are currently still being developed, and thus may or may not contribute to the Veteran's unemployability. However, the probative, competent evidence of record supports a finding that the Veteran's service-connected depression makes her unable to secure or follow a substantially gainful occupation, as has been found by two VA medical professionals. Thus, in this case, as the weight of the probative evidence supports the Veteran's claim, the claim for a TDIU is granted. ORDER Service connection for headaches is granted. Service connection for allergies is granted. A TDIU is granted. REMAND Additional development is necessary prior to further disposition of the Veteran's claims for service connection for a gynecological disorder, a low back disability, joint pain, and a dental disorder. The Veteran contends that her gynecological disorder, joint pain, and dental disorder were either caused or aggravated by her service, to include environmental toxins to which she might have been exposed during her Persian Gulf service, or are as due to an undiagnosed illness. In July 2014, a VA examination was obtained at which time it was concluded that the Veteran's disorders were not caused or aggravated by her service, however, these other theories of entitlement were not considered or discussed. In that regard, she states that upon returning from the Persian Gulf, her front teeth began to crumble and break, necessitating that they be removed, she states that she developed fibroids in service that necessitated undergoing a hysterectomy in 2002, and she states that she has generally experienced joint pains, especially in her hands and feet, since service. The post-service treatment records document repeat diagnoses of vaginosis beginning in the early 2000s. In that regard, the Veteran contends that she began to experience a strange vaginal discharge while in the Persian Gulf when she was unable to shower or tend to hygiene properly. In light of the Veteran's contentions and her service in the Persian Gulf from August 1990 to March 1991, the Board finds that remand for a new VA examination and opinion is warranted. With regard to the Veteran's claim for service connection for a lumbar spine disability, the Veteran contends that she injured her low back while performing her service duties that included refueling aircrafts while stationed in the Persian Gulf. She contends that she experienced ongoing back pain at the time but did not seek treatment due to the culture of her group. The service treatment records demonstrate that on September 1992 separation examination, the Veteran reported experiencing back pain that would radiate to her legs. In July 2014, a VA examiner essentially concluded that the Veteran's current low back disability, degenerative disk disease, was not caused or aggravated by her service, because it was not diagnosed until 2003. However, such conclusion is inadequate because it does not discuss the Veteran's reported service duties in relation to her claim. Moreover, private treatment records show her complaints of back pain as early as November 2000. Accordingly, a new VA examination and opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of her gynecological disorder. The claims file should be reviewed by the examiner. The examiner is requested to provide the following opinion: (a) Is the Veteran's gynecological disorder part of a medically unexplained chronic multi-symptom illness or an otherwise undiagnosed illness? (b) If a chronic disorder(s) is/are found, can such disorder(s) be attributed to a known clinical diagnosis(es), (to include review of the post-service treatment records showing repeat diagnoses of vaginosis and status post 2002 hysterectomy following uterine fibroids), or is there otherwise a medical explanation for such illness? If so, state the diagnosis; if not, so state specifically. c) Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current gynecological disorder was caused or aggravated by her service, to include environmental toxins in the Persian Gulf and unhygienic toileting/bathing conditions? 2. Schedule the Veteran for a VA examination to determine the etiology of her multiple joint pain. The claims file should be reviewed by the examiner. The examiner is requested to provide the following opinion: (a) Is the Veteran's joint pain part of a medically unexplained chronic multi-symptom illness or an otherwise undiagnosed illness? (b) If a chronic disorder(s) is/are found, can such disorder(s) be attributed to a known clinical diagnosis(es), or is there otherwise a medical explanation for such joint pain? If so, state the diagnosis; if not, so state specifically. (c) For any diagnosed disorder is it at least as likely as not (e.g., 50 percent or greater probability) that such disorder(s) is/are etiologically related to the Veteran's periods of active duty service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (d) For any diagnosed disorder is it at least as likely as not (e.g., 50 percent or greater probability) that such disorder(s) is/are caused or aggravated by the Veteran's service-connected lupus? 3. Schedule the Veteran for a VA examination to determine the etiology of her dental disability. The claims file should be reviewed by the examiner. The examiner is requested to provide the following opinion: (a) Provide an opinion as to whether the Veteran's contended dental disability (brittle teeth that chipped away upon returning home from the Persian Gulf and had to be removed) are part of a medically unexplained chronic multi-symptom illness or an otherwise undiagnosed illness. (b) If a chronic disorder(s) is/are found, can such disorder(s) be attributed to a known clinical diagnosis(es), or is there otherwise a medical explanation for such illnesses manifesting in tooth loss/erosion of teeth? If so, state the diagnosis; if not, so state specifically. (c) For any diagnosed disorder, is it at least as likely as not (e.g., 50 percent or greater probability) that such disorder(s) is/are etiologically related to the Veteran's periods of active duty service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? 4. Schedule the Veteran for a VA examination to determine the etiology of her lumbar spine disability. The claims file should be reviewed by the examiner. The examiner is requested to provide the following opinion: a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current lumbar spine disability was caused or aggravated by her service, to include her duties of refueling aircrafts that caused her to experience back pain, as well as the indication on separation examination of back pain and post-service treatment records in 2000 indicating back pain? 5. Then, readjudicate the claims for service connection for gynecological problems, a low back disability, joint pain, and dental problems. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response, then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs